What is discrimination?

Discrimination occurs when an employee or job applicant is treated unfairly because of their race, gender, nationality, religion (or lack thereof), age, disability, genetics, family status, and (in some states) their criminal history and domestic problems. If you deny a qualified job applicant a position, treat them differently than other workers, refuse to promote them, or terminate their employment on the basis of any of those factors, you could be sued for discrimination.

Gender Identity Discrimination vs Sex Discrimination

Gender identity and sex discrimination are two different things. Sex discrimination occurs when an employer discriminates a person on the basis of their birth sex. Gender identity discrimination occurs when an employer discriminates against a person who self-identifies as another gender than the gender they were born as. (Thankfully, our industry tends to be more open-minded than most regarding issues of gender, sexuality, and gender identity.)

Until 1989, federal and state courts didn’t protect transgender people from discrimination under Title VII of the Civil Rights Act. Price Waterhouse v. Hopkins changed that, but discrimination based on gender identity still isn’t explicitly illegal on a federal level. The law is still developing in this area, but some states have protections against it. To learn more about your rights when confronted with gender identity discrimination in the salon, click here.

The First Tower Loan Case

Remember when I said we don’t have these problems in this industry because we tend to be more open-minded? I dug for a long time and couldn’t find any cases regarding gender discrimination in our industry. (Hooray for us, right?)

The employee, Tristan Broussard, began working as a manager-trainee on March 4th, 2013. While completing his employment paperwork, he was asked to produce his driver’s license. The manager, Leah Sparks, (who had interviewed Broussard for the position and hired him) noticed that his license listed his sex as “F.” She questioned him about it–because obviously, she didn’t realize he wasn’t born male until that point. He explained that he was a transgender man. For a reason that will forever remain a mystery to me, Sparks decided to immediately notified the company’s VP.

The VP, David Morgan, traveled to the office to meet with Broussard and told him that he must dress and act as a female in the workplace. Broussard refused, informing the VP that he is transgender and lives and identifies as a male. Morgan told Broussard that he felt his gender identity would “confuse customers,” even though there were no customer complaints and the hiring manager herself didn’t know Broussard wasn’t born biologically male until she saw his driver’s license.

It gets worse.

Morgan told Broussard they “might consider allowing him to dress like a man if he underwent surgery.” (As if attaching a new piece of anatomy to a part of his body not visible to the bank customers would make a damn bit of difference.)

Cringing yet? There’s more.

As a condition of continued employment, Morgan insisted Broussard sign a written statement that read:

“I understand that my preference to act and dress as a male, despite having been born a female, is not something that will be in compliance with First Tower Loan’s personnel policies. I have been advised as to the proper dress for females and also have been provided a copy of the female dress code. I also understand that when meetings occur that require out of town travel and an overnight room is required, I will be assigned to a room with a female.”

Can. You. Effing. Believe. That?!

Watch this video of Tristan discussing the meeting and his case. Can you imagine ANYONE “confusing” him for a female? I think people are far more likely to get confused by him showing up in female clothing.

In my opinion, the VP’s behavior and demands were clearly designed to force Broussard to conform to the VP’s preferred gender role, or leave the workplace.

Broussard refused to sign the document (as any reasonable person would) and was promptly fired.

The EEOC filed suit, citing Price Waterhouse v. Hopkins and a decision made in The Fifth Circuit Court of Appeals in New Orleans that reaffirmed that principle (EEOC v. Boh Bros) in the same-sex harassment context. The case is pending private arbitration, but it looks pretty bad for the bank. If they had not seen Broussard’s sex on his license they likely would never have known he wasn’t born male.

Regardless of how convincingly male or female a transgender employee looks, subjecting them to this kind of treatment is cruel, dehumanizing, and wrong.

What religions are protected?

All of them, whether you like it or not. Additionally (and sort of ironically), atheists are also protected by the same laws. For example, you can’t force a godless heathen like me to attend prayer meetings anymore than you can prohibit a Muslim employee for praying during their break.

What is considered “reasonable accommodation” for religious beliefs?

Employers have an obligation to make a workplace change because of religious beliefs or practices if it would cause little to no burden on the business. For example, let’s say your atheist salon manager has no interest in attending your pre-meeting prayer sessions. It’s reasonable to excuse them from that portion of the meeting. If you have an employee who is a Seventh-Day Adventist and her religious beliefs prohibit her from working from sundown on Friday until sundown on Saturday, it’s reasonable to establish a schedule for her that accommodates her Sabbath.

An employee should never have to choose between their religious beliefs and their job.

The Supercuts Case

In 2011, an Oakland, California Supercuts agreed to pay $43,000 and to implement preventive measures to settle a religious accommodation and retaliation lawsuit filed by stylist and shift manager Carolyn Sedar.

Sedar began working for Supercuts in 1999, and up until 2008, Supercuts accommodated her religious beliefs by excusing her from work on Sundays (her Sabbath). When a new store manager scheduled Sedar for a Sunday shift, Sedar submitted written and oral requests for accommodation. The new store manager refused to accommodate her and fired Sedar after she refused to work on two consecutive Sundays.

San Francisco District Office director, Michael Baldonado said in a statement, “When there is a conflict between religion and workplace practices, solutions can often be low or no cost, if you approach it flexibly and creatively. Don’t leave your supervisors and managers in doubt about how to respond to a request for accommodation. Make it clear that failing to accommodate sincerely held religious beliefs may put the company in violation of the law.”

What if the religious accommodation causes a safety or health hazard?

You’ve hired Susan, Grand Priestess of the Church of Unshaven Armpits. Part of Susan’s religious beliefs involve wearing tank tops and growing long, luscious underarm hair which must remain uncovered at all times. Unfortunately, your state board authorities prohibit stylists to work with exposed armpits, as it’s considered unsanitary. Legally, you may have grounds to refuse to accommodate Grand Priestess Susan’s request to let her waist-length underarm hair flow free, because the accommodation would put your salon at risk of being fined for health/sanitation regulatory violations.

This is an absurd example because I can’t think of a religious practice that would cause any safety or health hazards in the salon. I recommend consulting with an attorney before making any decisions regarding refusal of religious accommodation, because if I can’t think of one or find an example of one, there likely isn’t one.

What is pregnancy discrimination?

When an employer discriminates against an applicant or employee on the basis of pregnancy, childbirth, or related medical conditions, it’s considered unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

Employers cannot refuse to hire a qualified woman because she’s pregnant, or because of the prejudices of co-workers, clients, or customers. Obviously, other discrimination tactics (lower wages, less opportunity, employment termination) are prohibited as well.

The Warren Tricomi Case

In 2011 the EEOC sued Warren Tricomi, a New York-based hair salon, for withdrawing a promotion from (and then firing) assistant colorist Jessica Manno after they learned she was pregnant.

The suit alleged that on approximately August 23, 2010, Manno was offered a promotion to colorist. She told Joel Warren (one of the Warren Tricomi owners) that she was pregnant. Warren told her the news was “a lot to digest” and said he’d “discuss it with the other owners.” Manno made several unsuccessful attempts to contact Warren to discuss her start date in the new position, and was fired around September 1st.

This allegedly constituted a violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act. Warren Tricomi settled the suit for $30,000.

Best Practices for Avoiding Discrimination Suits

1.) Train your employees and managers, and keep them informed. As the salon owner, it’s your responsibility to ensure your employees and managers are behaving appropriately. Educate yourself by consulting with an attorney about workplace discrimination and following employment law blogs (I have a list of the ones in my feed here). The EEOC feed is not only informative, but frequently very entertaining. You should also follow the Society for Human Resource Management blog, not just for legal stuff, but for business management advice.

2.) Don’t be a jerk. It’s fine to have deep personal belief systems, but at the end of the day, you have to remember that your business is “a place of public accommodation.” Your customers and employees are generally protected from discrimination based on race, religion, and national origin. (Until the law catches up with society, depending on the state and the circumstance, you might be able to get away with discriminating against the LGBTQ community, but why would you want to? Is their money not just as green as everyone else’s? Are they less capable of earning money for your business because of their sexual orientation or gender identity? I think not.)

Develop empathy for others. If that fails, develop a deeper love of money.

3.) Seek professional advice when necessary. Don’t make assumptions based on your own research. Case law moves fast and the laws are different everywhere (not just on a state level, but in many cases, on a city level). Find an employment law attorney and consult with them if you find yourself in a questionable situation.

4.) Play it safe. If you can make an accommodation, do it. If someone obviously discriminates against one of your employees, correct it immediately. Be timely.

You should also have policies regarding sexual harassment and discrimination.

Progressive disciplinary policies are preferred also. Problematic employees who later try to file false claims of discrimination or retaliation will have a difficult time doing so when confronted with verification of disciplinary action taken as a result of existing policy violations.

With empathy, common sense, clear policies, open communication, and ongoing education, you’re unlikely to ever find yourself in a tight spot, but just in case, scout employment law attorneys and keep their contact information on file.

How to Handle Workplace Discrimination

I hope you guys found this post helpful! If you have any questions or experiences you want to talk about, contribute to the discussion in the comments. If you know of someone who could use this information, share this post with them!

Beauty industry survivalist, salon crisis interventionist, tactical verb-weapon specialist, and the leader of at least a hundred workplace revolutions, Tina Alberino is known as much for her extensive knowledge as for her sarcastic wit and mercilessly straightforward style. She’s the author of the book The Beauty Industry Survival Guide and the blog This Ugly Beauty Business. When she’s not writing, educating, or consulting, she can be found overthinking everything, identifying problems people didn’t know existed, and stubbornly working to change the things she cannot accept.

Hi, at the nail salon where I go, the owner has recently posted signs above each station that read ” for the comfort of other clients and insurance purposes, please leave your children at home and do not bring them to your appointment.”
My nail technician is self employed and a booth renter at the salon. Is it legal for the owner of the salon to not allow children at all?

A business owner may set terms that restrict or prohibit children from entering the business. However, whether or not it’s legal for the landlord to dictate that to a renter is likely not covered by any specific legislation. Most commercial landlord/tenant relationships are governed by contract law, which means that if the nail technician agreed to the terms in the contract and those terms prohibited children or gave the landlord the ability to dictate those types of policies, then she has to abide by it.

There are practical reasons a landlord would implement that policy. The first is liability (obviously), but the less obvious reason has to do with tenant retention. If she is running a rental establishment, she has multiple renters operating under the same roof. It’s in her best interest to keep all of those renters (and their clients) happy. As a professional, I have seen clients bring small children and allow them to run wild in the salon. It’s not only dangerous, it’s disruptive to the other professionals and clients. It sounds to me as if this has been a problem at some point in the very recent past. Owners don’t arbitrarily implement policies like that unless they’re pressured to do so. It’s very likely that some disgruntled renters took issue with unsupervised children in the facility and demanded a policy change. (For the record, I have three kids and am pregnant with my fourth. I love kids, but my salons all have strict “no children” policies.)